The Federal Court has determined that a bargaining
representative can be appointed by an employer to bargain for
agreements under the Fair Work Act without any formal appointment
documents being drawn up. Under the Act, an appointment must be
"in writing", including the date of the appointment. The
Court has determined that so long as the date of the appointment
can be discerned from the document, the appointment does not need
to have any particular formality. It must also be in a form that
can (on request) be given to an employee's bargaining
In Jones –v– QTAC (No 2)  FCA
399 (29 April 2010), Justice Collier determined that the Chief
Executive Officer (Ms Jones) of the employer
(QTAC) had been appointed as a bargaining representative for
enterprise bargaining negotiations. QTAC argued that it had not
made the appointment at all, but the Court found appointment was
made by a combination of Board minutes and a letter to the employee
bargaining representative (the ASU) which each
mentioned that Ms Jones would act as QTAC's bargaining
representative. That was, for the Court, enough to amount to an
appointment in writing.
The case arose because Ms Jones argued that a subsequent
bullying investigation initiated by QTAC was motivated by the
ASU's attitude to her actions as QTAC's bargaining
representative. In effect, she argued that the ASU engineered the
investigation to ensure her capacity to act as an effective
bargaining representative was blunted. The Court did not agree with
this second argument. It determined the initiation of a bullying
investigation was not because of her "workplace right"
(that is, status as a bargaining representative) but simply because
QTAC legitimately believed that it had an obligation to deal with
the bullying complaints it had received, and chose to discharge
this obligation by conducting an investigation. Evidence of
subjective reasons for taking action is relevant in deciding what
motivated the employer.
A key part of successful negotiations is to use the good faith
bargaining obligations to try to ensure that other bargaining
representative place only justified and reasoned positions on the
table for consideration. All bargaining representatives owe each
other the obligation to conduct themselves in line with the good
faith bargaining obligations. The accidental appointment of an
individual means employee bargaining representatives may not
recognise they owe those obligations to the employer's
Documents dealing with the bargaining process can amount to a
"written instrument" appointing an individual as the
employer's bargaining representative, although the employer
itself continues to be its own bargaining representative.
An appointment as a bargaining representative can also be
revoked by "written instrument". An unintentional
revocation of the appointment might occur without any formality.
Care needs to be taken when corresponding with other bargaining
Negotiating an enterprise agreement under the Fair Work Act
deserves a well thought-out strategy. Deliberate appointment of a
bargaining representative (either internal or external) who can
take best advantage of the good faith bargaining obligations and be
a channel for information is a key consideration. Accidental
appointment of an unsuitable or inexperienced person may mean this
advantage is lost.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
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